Potter v. Carreras

4 Rob. 629

• Court: The Superior Court of New York City
• Decided: October 9, 1865
• Status: Published

Opinion

By the Court,

Monell, J.

The practice in this case is so clearly irregular, that we cannot have a moment’s hesitation in dismissing the appeal.

The motion was to strike out the answer, and it was stricken out; whereupon, if the time to answer had expired, the plaintiffs could enter judgment, as upon the default of the defendant. Ko order for judgment, upon striking out the answer, was proper or necessary. The answer being stricken out, it was as if no answer had been put in. Ko appeal lies from a judgment by default.

The proper practice was to appeal from the order, not from the judgment,- The case of Briggs v. Bergen, (23 N. Y. Rep. 162,) is conclusive.

The judgment must therefore be affirmed.